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And don't wait too long to amend by Michael B. Skinner · Friday May 22, 2009 3:07 pm PERMALINK In Wormsbacher v Phillip R. Seaver Title Co., the Court of Appeals affirmed a dismissal on the theory that title companies cannot be sued in tort for mistakes that they make in title searches. The trial court stated that it was relying on a federal case, Mickam v Joseph Louis Palace Trust, 849 F Supp 516 (ED Mich, 1993), and Wormsbacher apparently tried to make some hay about the trial court erroneously thought it was bound by the federal authority. The Court of Appeals didn't agree, concluding that the trial court found the case only persuasive. Frankly, for a published opinion, I thought that the case was a bit light on the justification for its holding that title companies can't be sued in tort. The court recognized that there are federal cases interpreting Michigan law that have held such, so maybe the justification can be found by reference; also, the court notes that no Michigan court has addressed the issue. But the court also noted that other states have held that title insurers can be sued in tort; my gut tells me that the Court of Appeals is probably right on this one, but the opinion probably could have addressed some of the reasons why other states might have gone the other way and why Michigan doesn't. It isn't even clear to me from reading the opinion through once whether the court's holding is consistent with the majority rule of the states or the minority (although I suspect it is the majority rule). Finally, the court also upheld a denial of Wormsbacher's motion to amend. He didn't make the request until after oral argument on the motion for summary disposition (which means very possibly after it became clear he was about to lose). Asking for leave to amend in the alternative is pretty basic; absent soem reason not to do so, one shouldn't be afraid to dilute your main argument by doing it early, and this case explains why. | |
